Auernheimer v. Metzen

On de novo review, the majority holds that plaintiff “waived” his right to exercise the time-essence provision of his contract by continuing to accept installment payments without providing notice of default. “Waiver” occurs when one intentionally relinquishes a known right. Waterway Terminals v. P.S. Lord, 242 Or 1, 26, 406 P2d 556 (1965). The law will imply a waiver if, despite a breach of contract, a party by his conduct treats the contract as still in force and does not object to the breach. Widing et al v. Jensen, Real Estate Com., 231 Or 541, 547, 373 P2d 661 (1962).

Plaintiff, at the…